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Re P – Damages and the Human Rights Act

Rosalind English and Caroline Cross of 1 Crown Office Row consider the issues surrounding damages for human rights breaches in family cases following the decision in Re P.

 

image of caroline cross

Ros English

and

Caroline Cross of 1 Crown Office Row

An interesting question came before the Court of Appeal recently which is of some significance not only to family practitioners but for anyone considering the viability of pursuing a human rights argument where the remedy is unlikely to manifest itself in terms of monetary compensation.

In Re P [2007] EWCA Civ 2 the Court of Appeal considered whether the judge at first instance had been correct in considering that a declaration of breach of Article 8 was "just satisfaction"where a mother had been insufficiently involved in the decision by the local authority to abandon a care plan for her rehabilitation with her child. The mother had appealed on the basis of a number of Strasbourg authorities which she claimed entitled her to damages in addition to the declaration. Although the appeal was ultimately unsuccessful, their Lordships were clearly troubled by the question which suggests that these loss of opportunity cases may not always be dispatched without a damages award.

The facts
Briefly, the facts were as follows. The appellant had been in local authority care since the age of six. In January 2004, then sixteen, she gave birth to M. The appellant was separated from M in March 2004 amid concerns for his wellbeing. That December the respondent local authority sought to reunite mother and child. Following the negotiation of a care plan, a care order by consent was drawn up. The plan gave the mother six months to demonstrate capacity to parent M. Concurrently, steps towards adoption were to be taken. The plan envisaged M's removal in emergency circumstances or a general failure to progress. With regard to her progression, under the care plan the appellant was to be kept fully informed and clearly warned, and be allowed to mount a legal challenge.

Following the consent order, the appellant's care of M deteriorated, and she became violent and threatening. In January 2005 the local authority decided to remove M as a matter of emergency and to abandon the care plan. Though the appellant's solicitor was contacted prior to the separation, she herself was not informed. M was removed on the 6th January and later released for adoption.

The hearing at first instance
The appellant sought a declaration of a breach of her rights under Article 8 and damages under s.8 of the Human Rights Act and Article 41 of the ECHR arising from her insufficient involvement in the decision-making process. The judge at first instance held that there had been a significant breach in her procedural rights in deciding to abandon the care plan without her consultation. However, M's removal had been lawful as a matter of emergency and it was not in M's best interests to attempt further rehabilitation. He found that a declaration was just satisfaction, as the concept of damages did not sit easily with the welfare jurisdiction of family law.

The appeal
The mother appealed against the refusal to award damages. Although the breach had been purely procedural, there was no shortage of precedents for awarding damages in such circumstances and the appellant placed considerable reliance on the Strasbourg cases of W v UK (1987) 10 EHRR 29 and Venema v Netherlands [2003] 1 FLR 552. But in those cases, as Thorpe LJ noted in his leading judgment, damages had been awarded for the loss of opportunity and the distress caused by the lack of judicial remedy or injustice. However, the appellant had not suffered a loss of opportunity, as the judge below had found that it was 'distinctly probable' that, even if she had been invited to the meeting, the same conclusion would have been reached. Further, her outrage had preceded or flowed from the removal of M; there was no evidence to indicate that the exclusion from the decision had caused any independent or additional injury. While the local authority had been wrong to proceed to adoption without consulting the mother, she did not have capacity to consent at the time and her solicitor had been closely involved. She had been given the opportunity to issue legal proceedings, but had failed to do so timeously. Consequently, while the jurisprudence of the European Court of Human Rights indicated that damages were sometimes to be awarded where Article 8 rights were infringed by shortcomings in procedures, the breach ranked low on the spectrum of severity, and in this case did not justify monetary compensation.

W v UK and Venema are both authorities for the proposition that where a serious decision – such as removal of a child – is being taken, it is incumbent on the authority to involve the parent to a degree sufficient to provide him or her with the requisite protection of their interests. In Venema, it will be remembered, a child was removed because it was suspected that the mother was suffering from Munchausen's Syndrome by proxy. As the Strasbourg Court noted, there was "wholesale failure" to consult the parents or to give them proper opportunity to dispel concerns by challenging the reliability, relevance or sufficiency of the information upon which the authorities were acting. For these violations damages of €15,000 were awarded to the applicants jointly as compensation for the distress and anxiety resulting from feelings of frustration and injustice.

But in contrast to W v UK , R v UK (1987) 10 EHRR 74 and Venema, legal means of redress had been available to the appellant in this case even if not employed. Factually, the cases were also very different in terms of the severity of the breach. In W, the most extreme of the cases cited, the authorities restricted and then terminated the applicant's access to his child without any discussion or warning. The applicant had no means of legal address, and the child was put up for adoption. It is clear, therefore, that in comparison to previous authorities the present breach was indeed on the lower end of the "scale of severity". As such, the bases upon which awards of damages were justified by the Strasbourg Court were not present in the appellant's case. It was also apparent that the outcome would have been no different had she been consulted; hence the failure of the appeal.

The Law Commission's report
Nevertheless the Court of Appeal found the question of damages in such cases problematic enough to dwell on it at some length. Hedley J in the Divisional Court had also found this issue difficult, noting (as many judges have done before) the "lack of guidance" from Strasbourg as to quantum.

Even though Strasbourg jurisprudence on remedies is somewhat opaque, it does suggest that, in Hedley J's words, "reparation is secured by really quite modest awards." As ever, the October 2000 Law Commission report "Damages Under The Human Rights Act 1998" , proved to be more helpful in the reasoning behind this appeal than any particular determination spelt out in the annals of Strasbourg law.

This report notes that the Strasbourg Court normally applies a strict causation test which bars the majority of claims for pecuniary loss. Loss of opportunity in the general sense has generally not fared well under Article 41. However the Court has awarded pecuniary damages for loss of opportunity and illustrations under this head include child care cases such H v UK (1988) 13 EHRR 449. Most helpful to the appellant's case here were the paragraphs of the report that particularly focus on the Strasbourg case law in relation to children taken into care .

These paragraphs say, in summary, that in these cases where violations of Article 8 have been found, it is the manner of the decision, rather than the justification for the decision to place the children into care, which is the subject-matter of the dispute.

The proceedings might have been unduly protracted, or the parents insufficiently involved, and applicants in such cases have generally been successful in recovering "substantial" damages. In making such awards, it must be assumed that the Strasbourg Court has acknowledged the considerable distress and in some cases the loss of opportunities suffered, and has shown a greater willingness to speculate than in other types of case where loss of opportunity and consequent distress has been argued. The report notes that "the Court has been prepared in some cases to compensate the applicant for a 'loss of relationship' with his or her child. Perhaps these features of the Court's treatment of the case-law in this area can be attributed to the importance of the right in question and the lasting impact that a decision to place children in care will have on both applicants and their children."

But in any event, this case is distinguishable from the Strasbourg authorities because there was no loss of the opportunity to develop a relationship with the child.

The wording of section 8
In his assenting judgment Wilson LJ added this interesting reflection, that it had crossed his mind that "the firm negative phraseology of s. 8(3) of the [Human Rights] Act … namely "No award of damages is to be made unless …", is a feature of our domestic law not reflected in the Convention itself, which might therefore place the decisions of the European Court of Human Rights at one remove from us. He rejects this impression but it is a compelling idea and it is not by any means self evident that the difference between s. 8(3) of the Human Rights Act and Article 41 of the Convention is one of "style" rather than of substance. Parliamentary draftsmen choose their words carefully. Award of damages should in a sense be a last resort in public law cases and only where they are "necessary" in order to afford "just satisfaction". Indeed, this decision follows a line of authorities that seek to emphasise that a declaration of a breach of human rights should be considered "just satisfaction" and no more should be required by way of redress. In Anufrijeva and Another v Southwark London Borough Council; R (Mambakasa) v Secretary of State for the Home Office; R(N) v Secretary of State for the Home Office [2004] QB 1124 it was held that

"Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance."

This point was emphasised in R(Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, where Lord Bingham noted that the focus of the Convention is on the protection of human rights and not the award of compensation. Though not mentioned in the judgment, it would appear the court adopted a similar approach to the reasoning in Greenfield: it held that since the breach did not cause any additional injury and there was no real chance of a better outcome, an award of damages was unnecessary.

This case deserves careful attention because it will furnish the practitioner with very useful material on the likelihood of a court granting monetary compensation in addition to a declaration of breach, and therefore provide some level of guidance as to whether it is worth pursuing an HRA claim when all other claims to compensation have fallen away.

Caroline Cross and Rosalind English, 1 Crown Office Row

This article is based upon the authors' commentary which was first published on www.humanrights.org.uk